Law & Disorder —

ACTA draft leaks: nonprofit P2P faces criminal penalties

Public interest groups and scholars are piecing together the Anti- …

It's becoming clear that the Anti-Counterfeiting Trade Agreement is not, as backers have suggested, just a minor tuneup to worldwide intellectual property law, one done for the purpose of cracking down on fake DVD imports or Coach handbag ripoffs.

Such a law—one that amounted essentially to some streamlining and coordination in the fight against actual pirates—might well be hashed out between nations operating in secret. But a treaty that seeks to apply criminal penalties to peer-to-peer file-sharing? Let's open a window and let the sunlight in.

Rightsholders, especially in the music and movie businesses, have been upfront about what they want, and it's a long and sometimes scary list. But it has been hard to know if any of these ideas are actually moving forward in the ACTA negotiating sessions, since none of the countries involved have seen fit to release much in the way of useful information on the process—To the public, anyway. Based on sources and leaked documents, Knowledge Ecology International now asserts that ACTA drafts are in fact "formally available to cleared corporate lobbyists and informally distributed to corporate lawyers and lobbyists in Europe, Japan, and the US."

As for what's in these drafts, which are too secret to be seen by the public paying the negotiators' salaries, it's a long and mostly boring list of items intended to stop or slow shipments of counterfeit goods. But the ACTA proposals currently include language that would make copyright infringement on a "commercial scale," even when done with "no direct or indirect motivation of financial gain," into a criminal matter.

ACTA drafts are in fact "formally available to cleared corporate lobbyists and informally distributed to corporate lawyers and lobbyists in Europe, Japan, and the US."

Both KEI and Canadian law professor Michael Geist, who has been working his own sources, say that the current proposals require all signatories to "establish a laundry list of penalties—including imprisonment—sufficient to deter future acts of infringement." Geist believes that P2P use is the obvious target here, though such provisions might well be enacted only against file-sharing hubs rather than end-users.

Camcording in theaters gets its own special section and must also be considered a "criminal act" by countries that adopt ACTA. Handling fake movie and movie packages would also get the deluxe criminal treatment.

Also interesting, though of less concern to end users, are the proposed "border measures" that would allow customs agents to act against counterfeit goods. According to Geist:

The proposals call for provisions that would order authorities to suspend the release of infringing goods for at least one year, based only on a prima facie claim by the rights holder. Customs officers would be able to block shipments on their own initiative, supported by information supplied by rights holders. Those same officers would have the power to levy penalties if the goods are infringing. Moreover, the US would apparently like a provision that absolves rights holders of any financial liability for storage or destruction of the infringing goods.

ACTA will also become a sort of institution, with the creation of an ACTA Oversight Council to coordinate enforcement, schedule yearly meetings, etc.

Taking the hint

Some governments appear to be listening to the public criticism of the process. Michael Geist filed an Access to Information Act with the Canadian government and dug up a few new interesting documents.

One shows that Canadian negotiators at least read the documents submitted during public consultations; in it, negotiators noted "that the issue of transparency in the formal negotiation process is important for many of our stakeholders. Stakeholders have also requested additional information on the scope of the proposed ACTA, as well as further information on why the Agreement is being negotiated in this manner, as opposed to in existing multilateral fora such as WIPO or the WTO."

Such concerns are apparently being aired to the other ACTA countries, though it's clear that not everyone involved shares the Canadian public's interest in transparent process. The US Trade Representative has held a public consultation and a public meeting in DC to address concerns about ACTA, but little information has been forthcoming.

When have we ever lied to you?

So what we have to go on are largely leaked documents and the bland reassurances of governments. The European Union is a good example of the latter. "ACTA is about tackling large scale, criminal activity," we are told. "It is not about limiting civil liberties or harassing consumers."

It is not about limiting civil liberties or harassing consumers.

It goes on to say, "ACTA is not designed to negatively affect consumers: the EU legislation (2003 Customs Regulation) has a de minimis clause that exempts travellers from checks if the infringing goods are not part of large scale traffic. EU customs, frequently confronted with traffics of drugs, weapons or people, do neither have the time nor the legal basis to look for a couple of pirated songs on an i-Pod music player or laptop computer, and there is no intention to change this."

(i-Pod?)

And if you think that these negotiations are taking place in smoky backrooms to which only corporate lobbyists have access, you couldn't be more wrong. "It is alleged that the negotiations are undertaken under a veil of secrecy," says the EU. "This is not correct. For reasons of efficiency, it is only natural that intergovernmental negotiations dealing with issues that have an economic impact, do not take place in public and that negotiators are bound by a certain level of discretion."

Let's hope it's all true, and that the concerns of civil society groups and citizens really are considered. Perhaps they are; perhaps they will be. But it's certainly hard to tell at the moment. The EU and everyone else involved can issue all the say-nothing press releases they like, but those who care about the issue would feel a lot better if they could see the evolving drafts and have some process for providing input on them; asking people to turn in one document months ago without having seen even a set of proposals hardly qualifies as an "open process."

Still, when you consider that RIAA-backed measures like ISP filtering don't appear in the current leaked drafts and MPAA-backed "three strikes" laws also appear to be absent, perhaps the governments truly are attempting to keep ACTA focused on industrial-scale piracy. It would just be comforting to have something other than their words to go by.

But the ACTA proposals currently include language that would make copyright infringement on a "commercial scale," even when done with "no direct or indirect motivation of financial gain," into a criminal matter.

If there is no financial gain, how is that commercial? The only act that I can think of that could be on a "commercial scale" without "financial gain" is someone sharing MP3's over P2P...and there are already laws covering that...and to try to make that a criminal act is just wrong.

If there is no financial gain, how is that commercial? The only act that I can think of that could be on a "commercial scale" without "financial gain" is someone sharing MP3's over P2P...and there are already laws covering that...and to try to make that a criminal act is just wrong.

My suspicion is that they'll want to point at the likes of the former Napster and claim that's what they're trying to prevent by going after the operators rather than the users. Except that nobody does that anymore. What we see today is the likes of Youtube. But they've got safe harbor as long as they're complying with take down notices, so that's going nowhere unless they plan to repeal safe harbor -- and maybe that is the plan.

As for P2P users, even if they could argue that an individual user is doing anything on a "commercial scale" with a straight face, applying any nontrivial criminal penalties for this would be a miscarriage of justice that would make unconstitutional damage awards look like parking tickets. And I don't think courts are going to look favorably on putting Ma and Pa Kettle in a prison cell just because their kids couldn't disambiguate limewire from youtube and hulu. But I could be wrong.

If there is no financial gain, how is that commercial? The only act that I can think of that could be on a "commercial scale" without "financial gain" is someone sharing MP3's over P2P...and there are already laws covering that...and to try to make that a criminal act is just wrong.

You've hit the nail on the head. The backbone of copyright law is financial and fiscal protection for copyright holders. Outside of that there is no rationale for copyright law or its enforcement. By attempting to remove the "financial gain" aspect of copyright law from copyright law enforcement, and by attempting to criminalize the mere act of copying something even when no fiscal damage to the copyright holder can be demonstrated, the RIAA and pals are attempting change the very definition of copyright law--through the backdoor.

RIAA and pals want to do this because as they have stated numerous times, having to actually prove you've been financially damaged by copyright infringement, and the real extent of that financial damage, is too onerous a burden for copyright holders to have to bear. So they want to do an end run around the only rationale for copyright law that exists--financial damage to the copyright holder. This is all very sneaky and I hope this isn't what is actually going to be ratified here.

You've hit the nail on the head. The backbone of copyright law is financial and fiscal protection for copyright holders. Outside of that there is no rationale for copyright law or its enforcement. By attempting to remove the "financial gain" aspect of copyright law from copyright law enforcement, and by attempting to criminalize the mere act of copying something even when no fiscal damage to the copyright holder can be demonstrated, the RIAA and pals are attempting change the very definition of copyright law--through the backdoor.

RIAA and pals want to do this because as they have stated numerous times, having to actually prove you've been financially damaged by copyright infringement, and the real extent of that financial damage, is too onerous a burden for copyright holders to have to bear. So they want to do an end run around the only rationale for copyright law that exists--financial damage to the copyright holder. This is all very sneaky and I hope this isn't what is actually going to be ratified here.

i will refrain from mentioning any of those derogatory terms you techies use when criticizing judges when they have no idea how tech works...

Well noted, but as far as I know there is a big reluctance in the government to prosecute people under this law. Since the RIAA has been so successful at hauling tens of thousands into civil court, even the Bush Justice Dept thought it would be a big waste of their resources to pursue copyright infringement as a criminal matter.

We should be grateful that the DoJ thinks there's better things to do with their time and personnel than trolling P2P usage...

Once upon a time, music, movie, and paper publishing companies were the only people with the real practical ability to mass duplicate and distribute media. Copyright law seems to have been a reasonable way to make sure that such companies didn't steal each other's works, ie. to protect the value of the intellectual property.

But now, the clock has ticked, and We The People have our own duplication and distribution tools. We have bought and paid for the skills, hardware, software, and networks to do this job for ourselves.

What right has anybody to tell Us that We may not provide these services to ourselves / each-other, at whatever cost We choose (usually free)?

I understand that the companies will be combative and territorial about this service domain, but it is not their God Given Property. It is also true that We The People are often collectively failing to pay the real and fair costs of content creation, ie. we are stealing the intellectual property. Surely this must be remedied.

But We must not accept arbitrary limitations on our freedom to duplicate and distribute media for ourselves, using our own tools and resources. These functions constitute perhaps the largest portion of real value of Our computers and networks. This is what We spent Our hard earned money to buy. These are Our tools now. This is Our future. Let it be free and productive for all.

</rant>

Given that there seems to be no real division between corporate and government interests, and that our human rights and future are of little to no concern to these parties (ACTA, WIPO, etc.): I call this open war.

Steal nearlyEVERYTHING. Pay real artists and content creators directly and generously whenever you can. Boycott the rest. Send a message that you will not fund your own loss of rights and future. Drive these dinoursaurs into the mists of history where they belong. Every dollar they earn is a dollar to spend against Us.

Given that there seems to be no real division between corporate and government interests, and that our human rights and future are of little to no concern to these parties (ACTA, WIPO, etc.): I call this open war.

Steal nearly EVERYTHING. Pay real artists and content creators directly and generously whenever you can. Boycott the rest. Send a message that you will not fund your own loss of rights and future. Drive these dinoursaurs into the mists of history where they belong. Every dollar they earn is a dollar to spend against Us.

Hallelujah Brother! Problem is, the corporations and their government dogs have bigger guns and no moral or ethical standards, and will readily fuck over as many of the citizenry as required until fear brings them into line.

For reasons of efficiency, it is only natural that intergovernmental negotiations dealing with issues that have an economic impact, do not take place in public and that negotiators are bound by a certain level of discretion.

Hallelujah Brother! Problem is, the corporations and their government dogs have bigger guns and no moral or ethical standards, and will readily fuck over as many of the citizenry as required until fear brings them into line.

Are you so sure of that*?

Outside of NA, I cant' think of so many places where the RIAAs of the world are actually sueing individual users with some kind of success. And a quick glance at TPB or any other torrent site probably tells us that the state of P2P and sharing networks in NA is as strong as ever, so other than noise, the RIAA legal campaign doesn't seem to be having much success.

For 10 years I've been told that the free lunch of P2P and the likes wouldn't last, that we should enjoy it while it last and that we would be soon brought into line. And 10 years after Napster, I still have access to more free music, movies and books I ever dreamt. In my view, the RIAAs of the world have already lost and just trying to keep un-dead the corpse of a long ago buried business model.

* Of course they will readily fuck over the citizenry... what I'm not so sure is about the bigger guns.

^You're right. Free copy nearly everything. My bad for adopting their fearmongering and distorting language. The only upside would be that if many "honest" people saw how dishonest The Man is, and decided to "steal" in deliberate defiance, it would help them be less intimidated overall by such selfserving lies peddled falsely as morality.

They continually demand the abolishment of the public domain, the rights for private use, the rights of private communications, the rights to privately owned devices, and now the rights to civil liberty!? And what do we get in exchange for the forfeiture of these rights? The right to pay over and over again for the same tripe for all of eternity! Ya, that's really fair...